These Subscription Terms, together with the Order Form, constitutes the entire agreement between FFG and the Subscriber regarding the subject matter hereof, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, regarding such subject matter. To the extent of any conflict or inconsistency between the terms on the Order Form and these Subscription Terms, the terms on the Order Form shall prevail. By signing the Order Form, the FFG and the Subscriber each hereby agree to abide by all terms and conditions in this Agreement. In the event that during the term of this Agreement these Subscription Terms are updated by FFG (any such update, the “Updated Subscription Terms”), Subscriber shall be notified of and provided access to the Updated Subscription Terms and following Subscriber’s consent (which may be done electronically) to such Updated Subscription Terms, the Updated Subscription Terms shall supersede any prior versions of the Subscription Terms and be binding upon FFG and the Subscriber.

Capitalized terms not otherwise defined on the Cover Page or elsewhere in this Agreement, shall have the meanings set forth below.

“Anonymized Data” means anonymized data or anonymized information created by FFG from the Subscriber Data. For the avoidance of doubt, Anonymized Data shall not include any Personal Financial Information.

“Documentation” means the documentation published by FFG that describe the features, functions and operation of the FFG Services, as it may be updated by FFG from time to time.

“Eligible User” means Subscriber employees and other individuals who have been authorized by Subscriber to use the FFG Services.

“FFG Services” means the online, web-based applications provided by FFG through the website(s) designated by FFG for use with such applications and purchased by Subscriber from FFG pursuant to a Subscription Order Form.

“Personal Information” means any information that identifies or could reasonably be used to identify an individual person, including but not limited to names, social security numbers, driver’s license numbers, tax identification numbers, addresses and telephone numbers), any information that identifies characteristics (such as qualities, likes, dislikes, propensities or tendencies) of any person, or any information which is compiled or derived from any of the foregoing.

“Process, Processed or Processing” shall mean any operation in relation to Personal Information irrespective of the purposes and means applied including, without limitation, access, collection, retention, storage, transfer, disclosure, use, erasure, destruction, and any other operation.

“Subscriber Data” means User Data and other information and data that is entered into or uploaded to the FFG Services by Subscriber or provided by Subscriber to FFG or processed or stored by FFG on behalf of Subscriber in connection with access or use of the FFG Services.

“Subscription Order Form” means the initial Subscription Order Form attached as Exhibit A hereto and any subsequent ordering document for FFG Services under this Agreement signed by both parties.

“Subscription Term” for an FFG Service means the subscription period for such FFG Service purchased by Subscriber from FFG and any renewals thereof pursuant to the applicable Subscription Order Form.

“User Data” means the information and data that is entered into or uploaded to the FFG Services by Eligible Users or otherwise provided by Eligible Users to FFG in connection with access or use of the FFG Services.

FFG SERVICES.

Access to and Use of the FFG Services. Subject to the terms of this Agreement, FFG grants Subscriber a non-exclusive, non-transferable (except pursuant to Section 10.5), non-sub-licensable right to access and use the FFG Services for the number of Eligible Users for which Subscriber has purchased subscriptions from FFG pursuant to the Subscription Order Form (or if such Subscription Order Form specifies that the number of Eligible Users shall be unlimited, an unlimited number of Eligible Users). This grant of rights is subject to any technical limitations described in the Documentation. Subscriber and Eligible Users will use the FFG Services solely in the case of Subscriber for Subscriber’s internal business purposes and in the case of Eligible Users for their own personal use, and in compliance with the terms and conditions of this Agreement and FFG’s Terms of Use for the FFG Services, as they may be updated from time to time (the “Terms of Use”). Subscriber will not modify, copy, reproduce, republish, publicly display, translate, rent, lease, loan, sell, transmit, distribute or otherwise exploit the FFG Services or any portion thereof for any commercial purposes or other purposes and will not access or use the FFG Services for purposes of creating competing products and/or services. Subscriber will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notice incorporated in or accompanying any portion of the FFG. All rights, title and interest not expressly granted are reserved.

Eligible Users. The FFG Services may only be accessed and used by Eligible Users. Subscriber will use commercially reasonable efforts to prevent unauthorized access to or use of the FFG Services, and will promptly notify FFG if it becomes aware of any actual or attempted unauthorized use or access. Subscriber shall be responsible for use of the FFG Services by its Eligible Users. Eligible Users’ use of the FFG Services may be further conditioned on their acceptance of and compliance with the Terms of Use.

Pre-requisites. Subscriber shall be responsible for, and assumes the risk and expense of, obtaining, provisioning, configuring, maintaining, paying for and protecting all equipment and services necessary for it and its Eligible Users to connect to, access and use the FFG Services, such as computer hardware, operating system and browser software, and Internet access.

Subscriber agrees to pay FFG the fees for the FFG Services set forth on the Subscription Order Form in accordance with the payment schedule set forth thereon. All fees are non-refundable and non-cancellable. Except as otherwise provided in a Subscription Order Form, all invoiced amounts are due and payable thirty (30) days from the date of invoice. Notwithstanding the foregoing, if Subscriber reasonably and in good faith disputes all or any portion of the amount due on any invoice, Subscriber may withhold such amount until resolution of the dispute provided that Subscriber notifies FFG in writing within the applicable payment period and pays all amounts not subject to good faith dispute when due. The parties will use reasonable efforts to resolve the dispute within thirty (30) days,

All fees for FFG Services hereunder are exclusive of any export, withholding, federal, state and local taxes, duties or excises (excluding taxes based on FFG’s net income, property or employees). If FFG has the legal obligation to pay or collect any such taxes, duties or excises, FFG will invoice Subscriber, and Subscriber shall reimburse FFG, for such taxes, duties or excises.

Late Payments. All amounts not subject to a good faith dispute which are not paid by Subscriber as required by this Agreement may be assessed a late charge equal to one percent (1%) per month (or, if less, the maximum allowed by applicable law). In the event that any payment due hereunder not subject to a good faith dispute is overdue, FFG reserves the right to suspend performance until such delinquency is corrected.

PROPRIETARY RIGHTS.

FFG Services. As between Subscriber and FFG, FFG owns and retains all right, title and interest in and to the FFG Services and the Documentation and all software and technology used to provide the FFG Services, including all related intellectual property and industrial property rights and all derivative works based on the foregoing, including but not limited to modifications or derivative works created at the request or suggestion of Subscriber or an Eligible User. Subscriber acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.

Subscriber Data. As between Subscriber and FFG, Subscriber owns all right, title and interest in and to the Subscriber Data. Subscriber hereby grants to FFG a limited, royalty-free, non-exclusive license to use, copy, reformat, display, disclose and distribute the Subscriber Data solely for the purpose of providing the Services and as otherwise necessary for performing FFG’s obligations under this Agreement.

Usage and Anonymized Data. FFG may extract and collect data or information resulting from Subscriber’s or its Eligible Users’ use of the FFG Services using data capture, syndication, analysis and other similar tools or otherwise (“Usage Data”). To the extent that any Usage Data is collected by FFG, such Usage Data shall be owned by FFG. Subscriber further grants to FFG a royalty-free, non-exclusive, perpetual right and license to create anonymized data or information from the Subscriber Data (“Anonymized Data”) and to use Anonymized data for any lawful purpose. Notwithstanding the foregoing, FFG agrees it will not use Usage Data or Anonymized Data in a manner that permits the identification of Subscriber or any Eligible User.

Feedback. Subscriber and Eligible Users may provide suggestions, comments or other feedback (“Feedback”) to FFG with respect to its products and services. Feedback is voluntary and FFG is not required to hold it in confidence. FFG may use Feedback for any purpose without obligation of any kind to Subscriber or Eligible Users.

Documentation License. FFG hereby grants to Subscriber a non-exclusive, non-transferable (except pursuant to Section 10.5), non-sublicensable right and license to use and reproduce the Documentation during the Term for Subscriber’s internal business purposes solely in connection with its use of the FFG Services.

CONFIDENTIALITY AND DATA PROTECTION.

Confidential Information. Each party (the “Receiving Party”) understands that as a result of the relationship of the parties under this Contract, it may obtain information of the other party (the “Disclosing Party”), whether communicated in oral, written, electronic or other form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). However, Confidential Information does not include any information that (a) is or becomes generally available to the public other than as a result of a breach of this provision by the Receiving Party, (b) was known to the Receiving Party at the time of disclosure by the Disclosing Party without any obligation of confidentiality, (c) was disclosed to the Receiving Party by a third party without a breach of any obligation of confidentiality such third party may have to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party by persons who have had no access to such Confidential Information.

Protection and Use of Confidential Information. The Receiving Party agrees to take the same security precautions to protect against disclosure or unauthorized use of Confidential Information of the Disclosing Party that the Receiving Party takes with its own confidential information of like nature, but not less than reasonable precautions. The Receiving Party will not use the Confidential Information for any purpose other than the performance of obligations or exercise of rights under this Agreement and the Terms of Use and will not disclose Confidential Information to any other party other than to its employees, officers, directors, or advisors (“Representatives”) who have a need to know such Confidential Information for such purpose and who are bound by confidentiality obligations at least as protective of the Confidential Information as this provision. The Receiving Party is responsible for full compliance with the terms and conditions of this Agreement by its Representatives. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information that is required to be disclosed to comply with applicable laws or regulations or a judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such intended disclosure where possible so that it may seek reasonable legal remedies to prevent or minimize such disclosure. The obligations of this provision will survive termination of this Agreement (i) with respect to Confidential Information that constitutes a “trade secret” under applicable law, for so long as such Confidential Information remains a trade secret under applicable law and (ii) with respect to all other Confidential Information, for a period of three (3) years from termination.

Data Protection. FFG will employ reasonable administrative, physical and technical safeguards, consistent with industry standards, to maintain the security, confidentiality and integrity of Subscriber Data stored or processed by FFG. Such safeguards include, but are not limited to: (i) employing firewalls and anti-virus measures designed to protect FFG’s networks and systems from external attack; (ii) use of encryption when transmitting Subscriber Data or storing passwords and user credentials; (iii) requiring that employees and third parties that may have access to Subscriber Data are subject to obligations to maintain its security and confidentiality substantially as protective as those in this Agreement and (vi) conducting periodic internal and third party audits or assessments of securities policies, programs and controls. FFG will promptly notify Subscriber upon discovery of any unauthorized third-party access to, or use of, Subscriber Data in FFG’s possession, and will provide Subscriber with reasonable support and information as needed to evaluate and remediate the incident. FFG will take reasonable measures to investigate allegations or signs of unauthorized third party access to, or use of, Subscriber Data in FFG’s possession.

Privacy Policy; Personal Information Protection. FFG maintains a posted privacy policy, currently available at http://financialfitnessgroup.com/privacy-policy/ (the “Privacy Policy”), and will comply with such Privacy Policy as it relates to User Data (including Personal Information). FFG will each comply with all data protection, privacy and security laws and regulations applicable to the Processing of Personal Information. FFG agrees that all Subscriber Data (including Personal Information) will be secured from unauthorized access, use, disclosure, loss, theft and Processing using industry standard security practices and technologies. FFG shall regularly evaluate, test and monitor the effectiveness of its information security program and shall promptly adjust and/or update such programs as reasonably warranted by the results of such evaluation, testing, and monitoring.

WARRANTIES AND DISCLAIMERS

FFG Warranties. FFG warrants that the FFG Services will operate in substantial conformity with their Documentation. Without limiting the foregoing, FFG will use commercially reasonable efforts to provide information that is accurate and consistent with applicable regulations, rules and self-regulatory organization guidelines, but Subscriber acknowledges that the information supplied as part of the FFG Services is not all inclusive or guaranteed by FFG. If Subscriber provides FFG with written notice of a material breach of the foregoing warranty during the applicable Subscription Term for an FFG Service, FFG will, as Subscriber’s sole remedy repair or replace the defective FFG Service or, if FFG determines the foregoing remedy is not commercially reasonable or if it fails of its essential purpose, terminate the Agreement with respect to the defective FFG Service and refund to Subscriber on a pro-rated basis any fees prepaid to FFFG for the corresponding unused period of the defective FFG Service.

Disclaimer. EXCEPT FOR THE EXPRES REPRESENTATIONS AND WARRANTIES HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FFG DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. ALL CONTENT PROVIDED THROUGH THE FFG SERVICES IS PROVIDED “AS IS” FOR YOUR USE IN ACCORDANCE WITH THIS AGREMENT ONLY. WHILE THE INFORMATION PROVIDED BY US MAY BE FROM SOURCES BELIEVED BY US TO BE RELIABLE, DUE TO VARIOUS FACTORS, INCLUDING THE INHERENT POSSIBILITY OF HUMAN OR MECHANICAL ERROR, WE CANNOT GUARANTEE THE QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, OR INTEGRTY OF ANY SUCH INFORMATION OR THAT IT IS FREE FROM DEFECTS. The FFG Services may contain links or other functionality that allows Eligible Users to access third party sites, applications or services. This third party sites, applications and services are not provided by FFG and are subject to separate terms and conditions, privacy policies and other agreements with the third parties offering such sites, applications or services. FFG takes no responsibility and expressly disclaims all liability for any such third party sites, applications or services.

FFG hereby agrees to defend, or at its option settle, any and all claims, demands, investigations, and causes of actions brought by third persons against Subscriber (each a “Claim”) alleging that the software or technology used in providing, or the content provided by FFG contained in, the FFG Services or any component thereof, infringes or misappropriates any intellectual property rights of a third party arising under the laws of the United States, and will indemnify and hold harmless Subscriber from and against any and all damages, losses, fines, penalties, costs and other amounts, including reasonable attorneys’ fees and expenses, agreed to in settlement of such Claim or that a court finally awards against Subscriber under any such Claim. FFG excludes from liability any Claims arising out of combination of the FFG Services with any other equipment, apparatus, software, processes, or materials not furnished by FFG, where infringement would not have occurred but for such combination. Indemnification under this Section is conditioned up Subscriber (i) promptly notifying Subscriber of any such Claim, (ii) promptly tendering to FFG sole control over the defense and settlement of such Claim for which indemnification is sought hereunder and (iii) reasonably cooperating with FFG, at FFG’s request and expense, to defend and/or settle such Claim. If (1) Subscriber’s use of any FFG Service is enjoined as a result of any Claim covered by this Section, or (2) in FFG’s opinion, an FFG Service is likely to become subject to any such Claim, FFG may, at its expense and option, (a) modify the FFG Service so that it becomes non-infringing; (b) procure for FFG the right to continue to use the FFG Service; or (c) terminate this Agreement and refund to Subscriber on a pro-rated basis any fees prepaid to FFG for the corresponding unused period of the FFG Services.

LIMITATIONS OF LIABILITY.

IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST REVENUE, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGE. THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY HEREUNDER IS LIMITED TO THE AMOUNTS PAID OR PAYABLE TO FFG BY SUBSCRIBER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS OF THE AGREEMENT, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

The limitations of liability set forth in Section 8.1 above will not apply to (i) the indemnification obligations for infringement claims provided in Section 7 and (ii) payment obligations under Section 3. The limitations of liability set forth in Section 8.1 will further not exclude or limit either party’s liability to the extent that such liability cannot be limited or excluded under applicable law.

TERM AND TERMINATION.

The term of this Agreement will commence on the Effective Date and will continue as long as any Subscription Term remains in effect, unless earlier terminated in accordance with this Section. The Agreement may be extended or renewed on the written agreement of both parties.

Termination for Breach. Either party may, at its option, terminate this Agreement in the event the other party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to cure such breach (or provide an acceptable plan for curing such breach) within thirty (30) days after receipt by the breaching party of written notice specifying the breach.

Effect of Termination. Upon any termination of this Agreement: (a) Subscriber will immediately discontinue all use of the FFG Services; and (b) each party will return, delete, purge or otherwise destroy any Confidential Information of the other then in its possession.

Survival. The provisions of Sections 3, 4, 5.5, 5.2, 6, 7, 8, 9.3, 9.4, and 10 and all rights and obligations that may have accrued prior to termination, along with any other provisions that might reasonably be deemed to survive such termination, will survive the termination or expiration of this Agreement.

FFG may issue a press release announcing the relationship with Subscriber and may create and publish on its website or otherwise white papers or case studies regarding the use of the FFG Services by Subscriber and its Eligible Users, in each case subject to Subscriber’s approval of the content of such press release, white paper or case study, which will not be unreasonably withheld or delayed. FFG may further publicly refer to Subscriber orally and in writing, including on its website and in sales presentations, as a customer of FFG. In each case FFG may use Subscriber’s name, trademarks, trade names, service marks, logos and other designations for such purposes, subject to compliance with any trademark usage guidelines provided by Subscriber to FFG.

Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties and, except as specifically provided herein, supersedes and merges all prior agreements between the parties with respect to the subject matter hereof. Neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement. There are no third party beneficiaries to this Agreement.

Relationship of the Parties. Subscriber and FFG are independent contractors, and nothing contained in this Agreement will be construed or implied to create an agency, partnership, fiduciary, joint venture, franchise or employer and employee relationship between them.

Notices. All notices required by or relating to this Agreement will be in writing and will be personally delivered or sent by means of overnight or express courier or certified mail, postage prepaid. Notices to Subscriber will be addressed to Subscriber to the address and to the principal contact (or in the case of a billing notice, to the billing contact) set forth on the Cover Page or such other contact and address as Subscriber notices to FFT in writing in accordance with this provision. Notices to FFG will be addressed to Financial Fitness Group, Attention: Legal, 501 W Broadway, Suite A #158 San Diego, CA 92101 or such other address and contact as FFG notices to Subscriber in writing in accordance with this provision.

Amendments. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties; provided, that in connection with any Updated Subscription Terms, the Updated Subscription Terms shall be effective and binding against the Subscriber following Subscriber’s consent (which may be done electronically) to such Updated Subscription Terms.

Assignment. Neither party may assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or all of its assets.

Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, that provision will be construed to so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of Agreement will remain in effect.

Waiver and Cumulative Remedies. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Except as expressly provided herein, the remedies provided herein are in addition to, and not exclusive, any other remedies of a party at law or in equity.

Force Majeure. Except with respect to payment obligations, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond the party’s reasonable control, the failure or delay will not constitute a material breach of this Agreement, but the obligations will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing the failure or delay, provided that if a party is prevented or delayed from performing for more than thirty (30) consecutive days, the other party may terminate this Agreement immediately upon written notice.

Governing Law; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflicts of law principles thereof. For purposes of all claims brought under this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state courts located in San Diego County, California or the federal courts located in the Southern District of California.

Counterparts. This Agreement may be executed by facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, g., www.docusign.com) or other transmission method and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.

About Financial Fitness Group

Financial Fitness Group (FFG) is an enterprise software company that developed a financial e-learning platform and actionable ecosystem designed to teach individuals the language of money. FFG is the leading provider of interactive financial education for the financial services industry and fortune 500 companies across the nation. Our cloud-based, independent and unbiased financial education and engagement platform, assesses and benchmarks participants overall financial fitness.